In the

United States Court of Appeals
               For the Seventh Circuit

No. 08-2592

T RENT M ARION,
                                              Plaintiff-Appellant,
                                v.

T HE C ITY OF C ORYDON, INDIANA and JOHN D OE #1,
Unknown Police Officers of the City of Corydon,
T HE C OUNTY OF H ARRISON, INDIANA and JOHN D OE #2,
Unknown Police Officers of the County of Harrison,
R OY W ISEMAN, B RUCE L AHUE, K EVIN T AYLOR, JAMES
S ADLER, T ODD S TINSON, T HE C ITY OF L OUISVILLE,
K ENTUCKY and JOHN D OE #3, Unknown Police Officers
of the Louisville Metropolitan Police Department,
T HE C ITY OF N EW A LBANY, INDIANA and JOHN D OE #4,
Unknown Police Officers of the City of New Albany,
JOHN D OE #5, Unknown Police Officers of the
Indiana State Police,
                                        Defendants-Appellees.


             Appeal from the United States District Court
     for the Southern District of Indiana, New Albany Division.
    No. 4:07-cv-0003-DFH-WGH—David F. Hamilton, Chief Judge.



    A RGUED F EBRUARY 19, 2009—D ECIDED M ARCH 23, 2009
2                                                     No. 08-2592

  Before F LAUM and W ILLIAMS, Circuit Judges, and
K APALA , District Judge.1
   F LAUM, Circuit Judge. Plaintiff Trent Marion brought
this action under 42 U.S.C. § 1983 against the City of
Louisville, the City of Corydon, the City of New Albany,
the County of Harrison, and several officers from those
jurisdictions and from the Indiana State Police. He
alleged that the law enforcement officers and govern-
ment entities violated his Fourth Amendment rights by
using excessive force against him in connection with a
police pursuit and subsequent shooting. All defendants,
except the City of Louisville and its unknown officers,
filed motions for summary judgment. Defendants sup-
ported their motions with affidavits and with video and
audio recordings. Marion offered no counter-affidavit
and pointed to no evidence that would call into question
defendants’ submissions. Finding no triable issue of fact,
the district court granted summary judgment for all
named defendants. Marion appealed, and we now affirm
the district court’s grant of summary judgment.


                          I. Background
    A. Facts
  The facts presented here are taken from the affidavits
of law enforcement officers and other witnesses to the
police chase, as well as from video and audio evidence
of the chase.


1
    Of the Northern District of Illinois, sitting by designation.
No. 08-2592                                                3

  On January 20, 2006, police officers approached Marion
on suspicion of shoplifting as he was leaving a Kroger
grocery in Louisville, Kentucky. When approached,
Marion admitted that he had hidden grocery items in
and around a baby in an infant seat that Marion had
placed in the grocery cart he was pushing. As officers
escorted Marion to the store’s loss prevention office, he
grabbed the infant seat, pushed one officer aside, and
bolted out of the store.
  The police officers and store personnel followed Marion
outside to the parking lot, where Marion ran to a red
1993 Ford Explorer. After tossing the baby seat, with the
baby in it, into the front seat on the passenger side, Marion
attempted to enter and start the vehicle. A scuffle ensued
between Marion and the Louisville police officers on the
scene. During the scuffle, a Kroger employee managed
to grab the baby seat and remove the baby from the
vehicle.
  Louisville Police Officer Michael Alvey attempted to
use his taser to subdue Marion, but Marion reached out
and twisted the taser cartridge so that it would not fire.
He backed his vehicle out of the parking space with a
door open, collided with another vehicle, and fled. As
Marion fled the parking lot, Alvey pursued immediately
in his police car. Marion led Alvey and other Louisville
police units on a high speed chase through the streets
of Louisville to Interstate 64.
  Marion continued on I-64 into Indiana. As he entered
Indiana, Louisville dispatchers alerted law enforcement
agencies in Indiana to the chase. New Albany, Indiana
4                                              No. 08-2592

Police Captain Rick Denny received a radio dispatch
alert that Louisville police were pursuing an armed
robbery suspect westbound on I-64. Denny pulled into
a turn-around area in the median near mile marker 120.
Almost immediately, he observed Marion in his Ford
Explorer traveling west in excess of 80 miles per hour. He
observed several Louisville police cars in pursuit with
emergency lights and sirens activated. Denny joined the
chase. Because he was the first Indiana officer to join,
Denny eventually took over the lead car position in the
pursuit. Other officers from Corydon and Harrison
County joined in the pursuit, and the Louisville officers
dropped back. The video taken with a camera mounted
on the dashboard of Denny’s police cruiser shows
Marion’s reckless driving at high speed. As the miles
ticked by, Marion’s vehicle started to emit smoke.
  At approximately mile marker 113, a Harrison County
Sheriff’s deputy in the highway median deployed
“stop sticks” in an effort to deflate the tires on Marion’s
Explorer. Marion swerved to try to avoid them. The
stop sticks damaged and deflated three tires, but Marion
continued to drive. He slowed from approximately 80
miles per hour to about 40 miles per hour and swerved
from one side of the highway to the other, eventually
returning to the left lane. Debris from the shredding tires
and from the Explorer began falling in the path of the
pursuing police units. Different police cars pulled to the
side of Marion to observe him and, in at least one
instance, to signal him to pull over. The police maneu-
vered to block Marion from taking any exit he passed.
No. 08-2592                                               5

   As the pursuit approached mile marker 105 and the
Corydon exit, officers attempted to deflate the one rear
tire that had survived the first set of stop sticks. Several
law enforcement vehicles were parked in the median
with officers outside their cars, weapons drawn and
stop sticks deployed. As Marion approached the stop
sticks, he swerved and drove toward several of the
officers in the median area and then back into the left
lane, avoiding the stop sticks. Soon thereafter, Louisville
police officers pulled completely out of the chase and
headed back to Kentucky.
  Denny, who still was the lead pursuing officer, then
coordinated over the radio a rolling roadblock on
Marion. One police vehicle pulled ahead of Marion
(driven by Officer James Sadler) and another pulled
alongside him in the other lane (driven by Captain
Brad Shepard) in an attempt to “box in” the Explorer
and gradually force it off the road. For a minute or so,
Marion attempted numerous maneuvers to avoid the
rolling roadblock. He tried to pass between the police
vehicles and swung his Explorer back toward Denny,
making some contact. Eventually, he tried to pull around
Sadler on the shoulder to Sadler’s left. Sadler stuck his
rifle out the driver’s window of his vehicle and fired
four shots at Marion’s vehicle in a further effort to
disable it.
  Near mile marker 103, Marion slowed and then sud-
denly turned hard to the left into the grass median toward
the eastbound lanes of the interstate, where traffic was
slowing or stopped. The highway median was wet and
6                                               No. 08-2592

muddy, but Marion continued to drive his Explorer toward
the eastbound lanes. The Explorer slowed as he tried to
cross. Officers moved on foot to surround the Explorer,
and they fired their initial shots at Marion. Just as the
muddy median and initial shots seemed to be bringing
Marion’s vehicle to a halt, he put the Explorer into
reverse and revved the engine, causing the tires to spray
mud, and the Explorer moved back several feet. This
maneuver scattered the officers who were approaching
the Explorer from the rear. Officer Kevin Taylor, a
Harrison County Sheriff’s Deputy, was behind the Ex-
plorer. He and other officers yelled for Marion to stop.
When Marion did not stop, Taylor fired six rounds at the
Explorer as it backed toward him. As more officers ap-
proached and demanded that Marion stop and raise his
hands, Marion shifted back into a forward gear and
continued revving the engine to move forward. Lieutenant
Roy Wiseman of the Harrison County Sheriff’s Depart-
ment and other officers were positioned directly in front
of the Explorer. They began firing at it when it moved
toward them and toward the eastbound lanes of the
interstate.
  All affidavits from officers who fired their weapons
when Marion was in the median testified that they did so
in fear of lethal danger to themselves or to others. All
testified that at no point did they see any sign that
Marion was trying to surrender or was stopping his
attempts to flee. All of the officer and civilian affidavits
indicated that it appeared that Marion intended to
drive his vehicle through the median and into the east-
bound lanes of the highway.
No. 08-2592                                               7

  After Marion stopped revving the engine and the shoot-
ing stopped, he was pulled from the vehicle and given
medical attention. He had suffered significant gunshot
wounds. As a result of his wounds, Marion lost his
right eyeball, resulting in permanent vision loss on the
right side, and he suffered severe damage to his left
hand. The officers discovered that Marion was not
actually armed. The law enforcement officers who sub-
mitted affidavits have all stated that they believed
Marion was armed, based on radio transmissions and,
in some instances, from the manner in which he was
reaching around in his vehicle while driving, as though
attempting to locate a firearm.


  B. District Court Proceedings
  Marion filed suit under § 1983 on January 5, 2007. He
claimed that defendants violated his Fourth Amendment
rights and that the officials were not entitled to qualified
immunity. He sued for $21.5 million in total damages,
including requests for compensatory and punitive dam-
ages. On May 11, 2007, the district court entered a case
management plan which set out certain deadlines, in-
cluding discovery and dispositive motions. On Novem-
ber 14, 2007, the City of New Albany filed its motion
for summary judgment. The City of Corydon, the County
of Harrison, Roy Wiseman, Bruce Lahue, Kevin Taylor,
James Sadler, and Todd Stinson followed with similar
motions. Marion opposed all motions for summary judg-
ment, yet he did not file or otherwise rely upon an
affidavit or sworn testimony of his own to oppose any of
the pending motions.
8                                              No. 08-2592

  On March 20, 2008, the district court granted defendants’
motions for summary judgment. The court concluded
that defendants’ evidence showed it was reasonable for
the officers to fire their weapons at Marion after he had
endangered the officers and innocent civilians over the
course of a long high-speed chase; after less drastic mea-
sures had repeatedly failed to stop Marion’s attempt to
flee; and as Marion was revving his engine, moving the
Explorer, and trying to gain traction in the median to
continue his flight. The court noted the arguments of
plaintiff’s counsel could not substitute for evidence, and
without contradictory evidence, there were not triable
issues of fact. The court ordered Marion to show cause
why it should not grant summary judgment in favor of
all other defendants.
  On April 16, 2008, Marion filed a motion to reconsider
summary judgment. He included new evidence in the
form of his own belated affidavit. In the affidavit, Marion
stated that he turned his vehicle into the median in an
attempt to surrender. At the time, he said, his vehicle
was overheating, had three flat tires, and was stuck in
the mud. He claimed that while he was trying to sur-
render, the pursuing officers shot at him without warning.
  On June 3, 2008, the district court denied Marion’s
motion to reconsider summary judgment. The court
concluded that Marion’s belated testimony was not
properly before the court, and thus it could not consider
the testimony. The court entered summary judgment
in favor of any and all named defendants.
No. 08-2592                                               9

                       II. Analysis
  Marion appealed from the district court’s grant of
summary judgment. Our review is de novo, and we
construe all facts and reasonable inferences in favor of
the nonmoving party. Tomanovich v. City of Indianapolis,

, 662 (7th Cir. 2006).
  As a preliminary matter, Marion does not properly
argue on appeal that we should consider his affidavit
that he submitted as part of his motion to reconsider the
grants of summary judgment, and we conclude that we
cannot consider his affidavit. It is well-established that
we can only consider such an affidavit if it consists of
newly discovered evidence that the party could not
have introduced during the pendency of the summary
judgment motion. Feliberty v. Kemper Corp., 

, 279
n.1 (7th Cir. 1996); Publishers Res., Inc. v. Walker-Davis
Publ’ns, Inc., 

, 561 (7th Cir. 1985). The evi-
dence that Marion submitted cannot be construed as
newly discovered evidence; the affidavit simply consists
of his version of the events at issue.
  Marion argues that the officers that shot him used
potentially deadly excessive force in violation of his
Fourth Amendment rights. He continues that use of such
force was unreasonable and unconstitutional under the
circumstances, and that disputed factual issues bar sum-
mary judgment in this matter. Defendants respond that,
under the circumstances, use of potentially deadly
force was reasonable as a matter of law; the officers are
entitled to qualified immunity; and the municipalities
and county cannot be held liable absent an underlying
constitutional violation.
10                                              No. 08-2592

   An officer conducting a search is entitled to qualified
immunity where clearly established law does not show that
the search violated constitutional rights. Pearson v.
Callahan, 

, 822 (2009) (citing Anderson v.
Creighton, 

, 641 (1987)). We use the Fourth
Amendment, which prohibits unreasonable seizures, to
analyze claims that law enforcement officers used exces-
sive force. Graham v. Connor, 

, 394-95 (1989).
Pre-seizure police conduct cannot serve as a basis for
liability under the Fourth Amendment; we limit our
analysis to force used when a seizure occurs. “A Fourth
Amendment seizure [occurs] . . . when there is a gov-
ernmental termination of freedom of movement through
means intentionally applied.” Scott v. Harris, 

, 1776 (2007) (citing Brower v. County of Inyo, 

, 596-97 (1989)).
  Whether the force used to effect a seizure is excessive
depends on the totality of circumstances under an objec-
tive reasonableness standard. “[T]he question is whether
the officers’ actions are ‘objectively reasonable’ in light
of the facts and circumstances confronting them, without
regard to their underlying intent or motivation.” 

. The Supreme Court further has coun-
seled that it is reasonable for a law enforcement officer
to use deadly force if an objectively reasonable officer
in the same circumstances would conclude that the
suspect posed a threat of death or serious physical
injury to the officer or to others. Tennessee v. Gardner, 

, 11-12 (1985).
 The Supreme Court recently decided a § 1983 police
pursuit case, Scott v. Harris, 

, 

No. 08-2592                                                11

(2007). In Scott, a police officer attempted to pull Victor
Harris over for speeding. Harris fled in his vehicle, initiat-
ing a high-speed car chase. Deputy Timothy Scott at-
tempted to end the chase by ramming Harris’s vehicle
with his police cruiser. Harris crashed and was rendered
a 

. Harris sued Scott,
claiming that Scott had used excessive force in violation
of his Fourth Amendment rights. The Court ruled that
Scott’s actions were reasonable and did not violate the
Fourth Amendment. The Court relied on a videotape
of the chase to hold that “it is clear . . . that [Harris]
posed an actual and imminent threat to the lives of any
pedestrians who might have been present, to other
civilian motorists, and to the officers involved in the
chase.” 

The opinion weighed the need to
prevent the harm Harris could have caused against the
probability that Scott’s use of force would harm Harris
himself. The Court concluded: “A police officer’s attempt
to terminate a dangerous high speed car chase that threat-
ens the lives of innocent bystanders does not violate the
Fourth Amendment, even when it places the fleeing
motorist at risk of serious injury or death.” 

  In this case, the government seizure occurred in the
highway median, when law enforcement officers finally
terminated Marion’s freedom of movement. While evi-
dence demonstrates that throughout the chase Marion
had very little regard for the safety of officers or inno-
cent bystanders, we limit our analysis to whether Marion
posed a serious danger to officers or innocent bystanders
once he was in the median.
12                                              No. 08-2592

  The evidence clearly demonstrates that, once in the
median, Marion attempted to regain traction and drive
toward the eastbound lanes of the highway, where
many innocent bystanders were present. There is no
question that he would have run over officers to reach
the eastbound lanes and continue his flight eastbound, if
he had the capability to do so.
  The key question, though, is whether it was objectively
reasonable for officers to conclude that Marion posed an
actual threat to officers or innocent bystanders once he
reached the median. Marion claims that his vehicle was
stuck in the mud, had three flat tires, was overheating,
and that an objectively reasonable officer in the same
circumstances as defendants would conclude that he
did not pose a danger to anyone at that time.
  Despite Marion’s contentions, it was reasonable for
the officers to determine that he did actually pose a
threat to the safety of officers and of innocent bystanders.
While three of Marion’s tires were flat, he had been able
to travel on three flat tires at fairly high speeds for a
significant stretch of time. Even after he entered the
median and officers on foot surrounded his vehicle, the
video evidence shows that Marion’s vehicle continued to
move forward significantly. Later, after he revved his
engine, he was able to drive the vehicle backward as
well. A reasonable officer would have concluded that,
absent police intervention, Marion had the capability to
run over officers and/or to reach the eastbound lanes of the
highway. Moreover, a reasonable officer would have
determined that, if he did reach the eastbound lanes, there
No. 08-2592                                              13

was a significant possibility that Marion would have
rammed one or more bystander’s vehicles or caused an
accident between bystanders’ vehicles, posing a sub-
stantial risk of serious injury or loss of life.
  We conclude that, under the totality of the circum-
stances, it was reasonable for the officers to think that
Marion seriously endangered officers and innocent by-
standers, and it was reasonable for the officers to dis-
charge their firearms in Marion’s direction to stop him.
Thus, there was no Fourth Amendment violation. Because
there was no deprivation of a constitutional right in
this case, the police officers are immune from liability.

; Akande v. Grounds, ___ F.3d ___,

(7th Cir. Feb. 9, 2009) (“If it is clear that
there has been no constitutional injury, . . . the officials
are entitled to immunity”) (citing Saucier v. Katz, 

, 201 (2001)). The district court correctly granted
summary judgment in favor of all officers.
  Furthermore, municipalities or counties cannot be
liable under § 1983 absent an underlying constitutional
violation by one or more of their officers. City of Los
Angeles v. Heller, 

, 799 (1986)). Because we
find no constitutional violation by the police officers, the
district court correctly dismissed Marion’s claims against
the named municipalities and against the County of
Harrison.


                     III. Conclusion
  Because we find that the officers’ actions were objec-
tively reasonable, we A FFIRM the district court’s grant
14                                     No. 08-2592

of summary judgment in favor of any and all named
defendants.




                      3-23-09